Many have attacked the Supreme Court’s 2010 case of Citizens United v. Federal Election Commission for holding that the First Amendment protects the rights of citizens organized as corporations to spend money independently to support or oppose candidates.
But they have been largely silent about another part of the Citizen’s United decision: the part upholding, over Justice Thomas’ sole dissent, federal requirements that contributors publicly reveal their names.
Last year, I wrote that, despite all the carping, Citizens United’s first holding is almost certainly correct. It is correct both under most modern Supreme Court jurisprudence and under the Constitution’s original meaning. I did have some questions about mandatory disclosure, however.
Several months ago I begin a historical and legal investigation to determine whether the First Amendment, properly understood, permits federal laws requiring that campaign advertisers disclose the names of financial contributors. Current Supreme Court jurisprudence does concede that in some cases forced disclosure may result in free expression being unconstitutionally “chilled.” But the Court does not protect anonymity per se—as the holding inCitizens United demonstrates.
The results of my investigation are contained in a new draft paper, tentatively entitled, Does “The Freedom of the Press” Include a Right to Anonymity? The Original Understanding. As always, I did my best to keep my investigation objective and balanced. But the evidence turned out to be pretty one-sided. Here is what I found:
* Under the First Amendment, political advertising is best analyzed as a branch of “the freedom . . . of the press” rather than as “freedom of speech.”
* During the Founding Era, the term “liberty of the press” and “freedom of the press” were exact synonyms, with the former used somewhat more frequently.
* Although there were some uncertainties, the general meaning of the phrase “freedom of the press” was fairly well understood. In other words, it was not a vague or indefinable term.
* During the Founding Era, the near-universal custom of those writing for the press on political subjects—including, but not limited to the Constitution—was to conceal one’s name. Authors preserved their privacy by writing either anonymously or under assumed names.
* There were important and completely legitimate reasons for privacy, all of which continue to be valid today. (In fact because of intervening changes in defamation law, those reasons may be stronger now than they were then.)
* In addition to universal custom, the historical records contain a fair number of explicit statements that assert, or inescapably assume, that “freedom of the press” includes the right to conceal one’s identity. I also looked for statements claiming that forced disclosure (by government or by printers) was consistent with freedom of the press, but found only one—and it applied merely to disclosure by printers, not by government.
* Under the prevailing law, the right to privacy of identity ended in specific cases of “abuse.” When an author appeared to be guilty of one or more specific offenses, a prosecutor or other plaintiff could require the printer to disclose the name. These offenses included, but were not limited to, defamation, sedition, and treason. In the absence of such an offense, the author’s name was private and none of the government’s business.
A 1782 incident demonstrates the prevailing consensus:
An author had placed an article in a Philadelphia newspaper criticizing state government. Hearing that the editor had revealed the name of the critic to the governor (then William Moore), another writer accused the editor of “treachery.” The strength of the attack showed how strongly the expectation of privacy was. So did the editor’s response.
The editor first explained that the governor had indeed asked the editor for the critic’s identity. But the governor had asked for it only, “if you are at liberty to mention his name.” Thus, both the governor and the writer assumed that, in absence of explicit permission, non-disclosure was the rule.
In response to the governor’s request, the editor then asked the author whether the editor had permission to reveal his name. The author responded, “You are at liberty to give my name to his excellency.” Only then did the editor reveal it.
Reading the historical record left me with the conviction that the Founders would have found mandatory disclosure of contributors to political advertising an outrageous violation of privacy. And certainly inconsistent with freedom of the press.